Academic journal article Law and Contemporary Problems

3D-Printed Firearms, Do-It-Yourself Guns, & the Second Amendment

Academic journal article Law and Contemporary Problems

3D-Printed Firearms, Do-It-Yourself Guns, & the Second Amendment

Article excerpt

I INTRODUCTION

In December 2012, Cody Wilson, a law student and self-described anarchist, (1) posted to the Internet free software that instructs a three-dimensional (3D) printer (2) to make plastic gun parts and a functional gun. At a demonstration widely covered by the media, Wilson fired a single bullet from a 3D-printed gun called "the Liberator." (3) He also posted to Kim Dotcom's website (4) the software (computer numerical code) that directs the printing. (5) Wilson and his supporters hailed this technological breakthrough as a giant step toward making firearms more publicly accessible and unsusceptible to regulation. (6) According to Wilson, "[I]n this world, in the world we want to create, anyone who wants access to a firearm can have access. Because we believe that is a right that no one should be allowed to infringe. Especially political actors.... Gun rights are human rights." (7) Wilson's demonstration was excoriated by gun control advocates because a 3D-printed plastic gun evades metal detection and is not traceable to its maker. (8)

The Directorate of Defense Trade Controls (DDTC), the U.S. State Department's unit in charge of administering and enforcing the Arms Export Control Act, advised Wilson to remove his 3D firearm printing software from the Internet (9) because it "might" violate the Act as interpreted by the State Department's International Traffic in Arms Regulations. (10) The Regulations require State Department permission to export "defense articles." (11) Export means: (1) "sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data," and (2) "disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad." (12) "Defense article" means articles and items on the U.S. Munitions List. (13) The list includes "technical data," defined as "information in the form of blueprints, drawings, photographs, plans, instructions or documentation" and "software directly related to defense articles." (14) Therefore, posting to the Internet technical data related to manufacturing defense articles constitutes arms exporting under the Act.

Wilson complied with DDTC's request. However, in the few days before he removed the software from the Internet, it was downloaded more than 100,000 times (15) and reposted to other websites. (16) Moreover, neither DDTC nor any other government agency prohibited Wilson from selling or giving his software away on a flash drive or via email as long as it is distributed in the United States. He formed a company, Defense Distributed, to sell 3D printers programmed to print firearms and firearms parts to Americans within the United States. Thus, anyone in the United States could easily obtain Wilson's 3D firearms printing software and hardware from Wilson himself, and a foreign person or entity could easily obtain these products through a willing U.S. intermediary, or from a foreign person who downloaded the software either from Wilson's website before he removed it from the Internet or from another website. (17)

Wilson sought to overturn the removal order by obtaining a "commodity jurisdiction determination" (18) from DDTC. (19) Consequently, Wilson, on behalf of Defense Distributed, submitted ten "commodity jurisdiction requests" pertaining to his software for 3D printing firearms. (20) On September 25, 2014, (21) while its commodity jurisdiction requests were pending, Defense Distributed sought prepublication approval from the Defense Office of Prepublication and Security Review (22) to publish on the Internet computer numerical control (23) files for producing "Ghost Gunner," a computer-instructed machine that mills a metal block--or, "blank"--into a lower receiver for an AR-15. (24) Uncertain as to whether Ghost Gunner was subject to the International Traffic in Arms Regulations, the Office of Prepublication and Security Review decided not to provide an opinion. …

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